On Petition for Rehearing.
Gillett, C. J.A petition for a rehearing has been filed by appellee in tbe above' cause. It is urged that we erred in holding that the judgment of the White Circuit Court was uot void, although before tbe institution of that proceeding tlio board had ordered the tax canceled. The subsequent cause was not like a claim against the county, where the board merely audits and allows or rejects tbe claim. When, the second proceeding arose, the hoard was acting in a judicial capacity. For such purpose it had been created as an independent tribunal to pass upon the rights *599of Llxo taxpayers of the township. Its grant of power from the General Assembly to pass on that class of controversies constituted jurisdiction over the subject-matter. That jurisdiction was invoked by the petition which was filed to cancel the tax. Notice was given, pursuant to statute, of the pendency of the proceeding, with the result that .another taxpayer, Bayless, appeared, and joined issue upon said petition, and also filed a cross-p>etition that the tax be ordered collected. No pleading setting up a formef adjudication was filed by those seeking to have the tax canceled. The jurisdiction of the "White Circuit Court and of this court, as well as of said board of commissioners, was each regularly invoked to pas's upon the controversy, and judgment was pronounced in each instance. The proposition that in these circumstances the judgments so rendered were mere nullities seems to us to be most extraordinary. The jurisdiction of each of the courts above mentioned was regularly challenged to consider of its power to hear and determine. The exercise of this power was jurisdiction, and, if it were granted that a wrong result was reached in passing upon the power to proceed, the judgments relied on by relator were nevertheless impervious to collateral attack. None of the cases cited by appellee’s counsel upon this point affords them any real support. They are either cases in which the board of commissioners was acting in a ministerial capacity, or where, in a judicial proceeding, an attempt was directly made to annul a prior judgment, a proceeding unauthorized by law.
One of the grounds on which counsel for appellee base their petition for a rehearing is that we failed to pass upon, the sufficiency of the twelfth and fourteenth paragraphs of answer. The printed briefs in the cause were very voluminous, aggregating six hundred pages. This fact, and the further one that appellee’s counsel did not set out the substance of said paragraphs in their brief on the cross-assignments of error according to the numerical sequence, led *600us to overlook said paragraphs. We proceeded on the theory that all of the twenty-three paragraphs of special answer related to matters that pertained to or antedated the principal action. On a reexamination of this cause, we find that we were in error in this assumption. We shall therefore pass upon these answers now. Said paragraphs charge, in substance, that an action was instituted in the year 1893 in the Clinton Circuit Court, by certain resident freeholders of the township which voted said tax, suing on behalf of themselves and all other owners of real and personal property in said township liable to be assessed for said special tax, against the auditor and the treasurer of said county, and said board, to enjoin said auditor from putting said tax on the duplicate, and said treasurer from collecting said tax, and to enjoin said board from exercising any jurisdiction over any application which theretofore had been, or which thereafter might be, filed for the collection of said tax and from paying any m'oney or 'making any,subscription of stock on account of said appropriation; that a summons against said officers and board was duly issued and served, and at the proper time they were defaulted; that thereafter such proceedings were dnly.had by said court in said action that said tax was adjudged null and void, and that a final decree of injunction was rendered against said officers and board as prayed. The answers further show that said complaint not only charged, nonperformance by said railway company, but that other matters were set out which it was charged made the tax void. It is averred in the twelfth paragraph that Bayless and the relator Moore were at the time resident taxpayers of said township; .and it was further charged in the fourteenth paragraph that said Moore had knowledge of the proceedings before thfe decree was rendered, and did not intervene therein.
. The first objection urged by appellant’s counsel to these answers is that the statutory remedy to cancel a railroad aid *601tax on the ground of nonperformance is exclusive, and that therefore the circuit court could not entertain jurisdiction in such a case. This objection, if well taken, does not go far enough. As pointed out above, other matters were pleaded as reasons for declaring the entire proceeding void. Injunction may be a proper remedy against an illegal and void tax. Smith v. Smith, 159 Ind. 388, and cases cited. This court has recognized the right in certain circumstances to enjoin a railway aid tax. Jager v. Doherty, 61 Ind. 528; Peed v. Millikan, 79 Ind. 86. If it were granted that a decree enjoining a board of commissioners from proceeding in a matter which was wholly within its jurisdiction would be invalid even on collateral -attack, yet this is not such a case. As above pointed out, the complaint made a ease where it was for the Clinton Circuit Court to determine whether, as a matter of law, the' proceedings to aid in the construction of the railroad were not wholly void. English v. Smock, 34 Ind. 115, 7 Am Rep. 215; Smith v. Smith, supra; Van Fleet, Collat. Attack, |150. And see Board, etc., v. Spangler, 159 Ind. 575. It is also to be recollected that the decree in question went further than to enjoin said board, since it enjoined the auditor and the treasurer from performing their respective duties. If the decree as to said latter officers is not void, it affords an answer to the mandate proceeding, since the peremptory writ will not issue where it appears that it would be nugatory in its results. Board, etc., v. State, ex, rel., 115 Ind. 61; State, ex rel., v. Cox, 155 Ind. 593.
It is next claimed by appellant’s counsel that the Clinton Circuit Court could not enjoin the enforcement of the judgment of the White Circuit Court. If this proposition were granted, the answer to it is that the complaint did not disclose that the latter court had rendered any judgment. Such matter was therefore, at most, blit a defense. The effort of the plaintiffs in said action was to tear up the proceedings by the roots. The ulterior fact of the existence *602of such judgment did not render the adjudication relied upon by appellee void.
It is urged on behalf of appellant that the parties defendant' to said action did not occupy such a relation to the matter in controversy as to invoke the jurisdiction of said court to determine the validity of said tax. The constitutionality of the act of May 12, 1869 (Acts 1869, p.'92), providing that counties and townships might aid in the construction of railroads, was upheld, in its provisions relative to counties taking stock in railroad companies, by holding, as the language of the act made it possible to do, that the county was not liable to the railroad company, notwithstanding the favorable vote, and that the only means of enforcing the payment of aid voted was by mandate, brought, after the collection of the tak, by one of the petitioners initiating, the proceeding, or by some taxpayer of the county in which the aid had been voted. Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185; Board, etc., v. Louisville, etc., R. Co., 39 Tnd. 192. This construction of the act has been followed as to townships voting such aid. Petty v. Myers, 49 Ind. 1; Jager v. Doherty, supra; Bitlinger v. Bell, 65 Ind. 445; Board, etc., v. State, ex rel., 115 Ind. 64. It has been held that the railroad company is not a necessary or proper party defendant in an action to have such a proceeding declared void. Jager v. Doherty, supra; Bittinger v. Bell, supra. In the latter case, where the action was to enjoin the county treasurer from collecting or attempting to-collect a tax voted in aid of a railroad company, it was held that it was not necessary to make the board of commissioners a party defendant; but it was further held that the treasurer, by reason of his office, was both a proper and a necessary party defendant. It would seem, considering the posture of said Clinton county case, that the last-cited precedent would require us to hold that the board was at least a proper party defendant. All of the taxpayers of the township were represented as plain*603tiffs; tlie township in its corporate capacity was not empowered by statute to take any steps in tlio granting of sucli aid, while the board and the auditor and the treasurer had duties to perform, under the law, if the proceeds of tax should be paid over. We incline to the ojfinion that the board, as the agent- of the township, was a proper party ■defendant under our code. But even if we were to admit that there was no proper party defendant before the court, it would not follow that its injunction was void. It was at least binding as to the defendants to the action, they having been duly served with process. Keyes v. Ellensohn, 30 N.Y. Supp. 1035; In re Ruppaner’s Will, 41 N. Y. Supp. 212.
An injimction is essentially a preventive remedy; mandamus operates much, in the relief it affords, like a decree for specific performance. Ordinarily, injunction restrains action; mandamus commands it. The question is whether one court should require a defendant to do a thing which another court of equal jurisdiction has forbidden.
Mandamus was originally a prerogative writ, and it does not issue now, ex debito justitiw. It issues at discretion, although this ■ discretion is to be exercised in accordance with the rules that have been established concerning such practice. The writ is not granted where it will work injustice or introduce confusion and disorder. For these reasons a court will not ordinarily command the doing of an act which another court of competent jurisdiction has forbidden, where the doing of the act would subject the defendant to punishment for contempt. Ex parte Fleming, 4 Hill 581; People, ex rel., v. Board, etc., 30 Hun 146; People, ex rel., v. Blackhurst, 11 N. Y. Supp. 669; Ohio, etc., R. Co. v. Commissioners, etc., 7 Ohio St. 278; People, ex rel., v. Circuit Judge, 40 Mich. 63; State, ex rel., v. Kispert, 21 Wis. 392; High, Extra. Legal Rem. (3d ed.), §23; Spelling, Injunction (2d ed.), §1378.
The Ohio case above cited was ono where a mandate was sought to compel a board of commissioners to make a sub*604scription for railroad stock in accordance with, a vote that had been taken. There had been a prior injunction suit instituted against the commissioners to cancel the tax, and they had answered the bill. Such suit resulted in a final decree absolutely and perpetually enjoining the commissioners from subscribing to the stock. In disposing of the mandamus case, the Ohio supreme court said: “It is true, the Ohio & Indiana Railroad Company was not a party to the proceeding in chancery in which the decree of injunction was rendered, and that decree does not, therefore, bind or conclude the company by any of its findings; but it does nevertheless have the effect, while it exists in full force, to preclude the company from having the peculiar remedy which it now here seeks. If we were to award the peremptory writ of mandamus, we should command the commissioners of Wyandot county to do the very act which, by our decree of injunction in full- force, they are forbidden to do. The idea of sucli inconsistency is wholly inadmissible. If the peremptory writ of mandamus were to issue, and the defendants failed to obey it, they would be liable to process for contempt, while, on the other hand, if they obeyed it, they would be equally in contempt for disobedience to the decree of injunction. Even where the order or decree of injunction is made by a court of competent jurisdiction other than that in which the mandamus is sought, the latter will not thus 'place a party between two fires, by subjecting him to contradictory orders. Ex parte Fleming, 4 Hill 581. Whether there be any way in which the Ohio & Indiana Railroad Company can get rid of the decree of injunction, is a question not before us. As to that, it is at liberty to proceed as it may be advised; but we are clear that it can not be done collateral in this proceeding.” StaTe, ex rel., v. KisperT, supra, has an especial application to this ease. In that case the defendant’s predecessor in office had been enjoined from doing the act which the alternative writ commanded. The court said: *605“Was the treasurer justified by the injunction in not paying over the money ? It is maintained by the counsel for the relator, that the injunction suit is collusive, and all proceedings in it void. We do not see any certain evidence of collusion on the part of Kernel, the treasurer. It would be a dangerous doctrine to establish, that a defendant, enjoined from doing any particular act, may himself determine that the injunction is void, and disregard it. We think he did right in obeying the injunction, and that it is a protection to him so long as it is in force; and it can not be annulled in this action. The remedy of the relator is not by mandamus, but by petition to be made a party to the injunction suit, or by some other proceeding.”
Equity acts in personam, and in a very real sense it may be asserted that a court so acts in punishing for contempt for the violation of a decretal order of injunction. ’ As was in effect pointed out in the principal opinion herein, although in another connection, a judgment estoppel in a case where an officer is a party, operates upon the office. The successor is in privity with his predecessor. It is to be borne in mind in this case, therefore, since the personnel of the board has changed since the injunction suit, that while the board is bound by the result of such suit, yet its members are not personally responsible for any dereliction of duty upon the part of the former board in not appearing. There is therefore an especial reason in this case why the members of the board as now constituted should not be compelled to do an act which at their peril they would be required to justify if cited for contempt in violating the decree pleaded. We hold that paragraphs twelve and fourteen of appellee’s answnr were sufficient, and that the court below erred in sustaining a demurrer to them.
As to the further grounds on which a rehearing is sought, we dispose of them with the statement that we remain content with the views expressed in the principal opinion.
In addition to the mandate heretofore entered by us, it is *606now ordered that the judgment sustaining a demurrer to said tivo paragraphs of answer he reversed. As no reason remains for the granting of a rehearing, the petition is overruled.